This is a project which if approved would construct and operate a 60-megawatt photovoltaic solar plant on 640 acres of agricultural land.

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1 717 K Street, Suite 529 Sacramento, Ca swainsonshawk@sbcglobal.net April 11, 2012 Derek Chambers Fresno County Public Works and Planning Department 2220 Tulare Street, Sixth Floor Fresno, Ca By dchambers@co.fresno.ca.us Re: - North Star Solar Project MND, CUP3314/IS 6349 Dear Mr. Chambers: Friends of the Swainson s Hawk believes that wildlife is part of California's future and we're dedicated to seeing the California population of Swainson's Hawks flourish for all generations to come. We are a 501-c-3 volunteer charitable organization providing advocacy for wildlife and habitat and raptor safety. This letter addresses our concerns about the Mitigated Negative Declaration for the North Star Solar Project, CUP3314, IS This is a project which if approved would construct and operate a 60-megawatt photovoltaic solar plant on 640 acres of agricultural land. We have reviewed the IS/MND and find it to be non-compliant with CEQA for failure to disclose and analyze significant environmental impacts, including but not limited to impacts to Swainson s Hawks. It fails to mitigate impacts to Swainson s Hawk to less than significant. These failures expose the project to potential CEQA litigation. The staff report describes the project: Allow a photovoltaic solar power generation facility with related improvements including a substation with three 70-foot tall electrical utility poles, 30 approximately 90 square-foot inverter/transformer buildings, a 2,000 square-foot maintenance building and a six-foot tall chain-link fence on portions of a acre parcel and a acre parcel in the AE-20 (Exclusive Agricultural, 20-acre minimum parcel size) Zone District. The MND and IS and staff report fail to analyze impacts on Swainson s Hawk from the two mile long generation tie line linking the project to the PG&E substation. Numerous comments by the Department of Fish and Game in a letter dated March 23, 2012, have not been acknowledged nor have the impacts identified by Fish and Game been analyzed nor impacts mitigated to less than significant in the MND. Page 1

2 We concur with the comments submitted by Defenders of Wildlife. We ask that the IS/MND be revised to address deficiencies and re-circulated prior to hearing. Please address the deficiencies identified below in a recirculation. In particular, we are concerned about Mitigation Measures 9, 10, 11 and 12 and 15, and the unjustified alteration of DFG recommended mitigation measures for burrowing owl impacts. Regulatory Framework: CEQA defines the significance of an impact on a state-listed species based on the following: Appendix G of the State CEQA guidelines states that a biological resource impact is considered significant (before considering offsetting mitigation measures) if the lead agency determines that project implementation would result in substantial adverse effects, either directly or through habitat modifications, on any species identified as being a candidate, sensitive, or special-status species in local or regional plans, policies, or regulations, or by CDFG or USFWS ; and 2 CEQA Section (Mandatory Findings of Significance), a biological resource impact is considered significant if the project has the potential to substantially reduce the number or restrict the range of an endangered, rare or threatened species. CEQA requires a mandatory findings of significance if a project s impacts to threatened or endangered species are likely to occur (Sections [c], 21083, Guidelines Sections 15380, 15064, 15065). Impacts must be avoided or mitigated to less than significant levels unless the CEQA Lead Agency makes and supports Findings of Overriding Consideration. (The Staff Report Regarding Mitigation for Impacts on Swainson s Hawk in the Central Valley of California, California Department of Fish and Game, November 8, 1994, page 4) Section (b) of the CEQA Guidelines requires that the environmental review describe any significant impacts, including those that can be mitigated but not reduced to less than significant levels. The Mitigated Negative Declaration Biological Assessment. On page 26 of the MND (Exhibit 9, p. 26 of the staff report), the staff finds that all biological impacts will be mitigated to less than significant. The biological report described on page 8 of Exhibit 9, said to be part of the original CUP application package February 1, 2011, is not included in the MND and the public is therefore unable to review the report and its methodology. The MND also mentions a meeting on site with Craig Bailey of CDFG on site September 29, The MND also mentions review of CNNDB data. The County of Fresno should have performed a standard biological assessment of Swainson s Hawk impacts per CDFG guidance in its 1994 Staff Memorandum. This includes identifying species use of the property and neighboring properties for nesting and foraging as well as offsite impacts of the project. It includes documenting the distance from known nesting sites of Swainson s Hawks and the potential for foraging on the property. The assessment should also indicate whether there are other nesting migrating raptors on or near the site. There is no evidence that a biological review was done during raptor nesting season. No Biological Assessment was included in the MND. The MND notes that a DFG representative verbally requested standard Swainson s Hawk mitigation measures be included. It claims that mitigation measures will be included so as to

3 reduce potential impacts to biological resources to a level of significance. Yet no evidence is produced in the document to substantiate a claim that the impacts are reduced to less than significant, the statutory standard. We are aware that DFG followed up with a review of the MND (March 23, 2012) and more specific information on the potential impacts and additional mitigation language. The MND has not been amended to conform with DFG recommendations. Hence there is lack of substantial evidence that the impacts of the project on Swainson s Hawk are reduced to less than significant. The use of CNDDB records rather than a direct consultation with CDFG is a serious flaw. CNDDB records are poorly maintained, out of date, and are therefore not complete and often underestimate species presence. CNDDB is also not intended to provide definitive data for purposes of CEQA review of a project. The CNDDB webpage says:...we cannot and do not portray the CNDDB as an exhaustive and comprehensive inventory of all rare species and natural communities statewide. Field verification for the presence or absence of sensitive species will always be an important obligation of our customers. ( CNNDB is neither intended nor is it adequate for assessing the impacts of a project on Swainson s Hawk it cannot document either presence or absence of the species in the project area for purposes of assessing impacts under CEQA. Mitigation Measures. The staff report includes the following mitigation measures for impacts to Swainson s Hawks. projects located within one-mile, five-mile and ten-miles of an active nest site. Habitat Loss. In terms of habitat loss, the MND should identify the number of acres of lost foraging habitat and require mitigation for this quantified loss in the Mitigation Monitoring Program. The current Mitigation Measures 11 and 12 fail to quantify the impact to be mitigated. Note that CDFG considers solar installation to be a permanent loss of foraging habitat (see California Energy Commission and Department of Fish and Game, June 2, 2010 entitled 3

4 Swainson s Hawk Survey Protocols, Impact Avoidance and Minimization Measures for Renewable Energy Projects in the Antelope Valley of Los Angeles and Kern Counties, California. ) Mitigation Measures 11 and 12 appear to be duplicative and may be in conflict. The lead agency should state specifically what mitigation is required to ensure that the measure is enforceable. To defer the quantification of the mitigation to a future date deprives the public of the opportunity to review and comment on the actual mitigation to be provided. DFG has confirmed in its letter of March 23, 2012 that Swainson s Hawks nest within one mile of the project. Foraging habitat mitigation should be calculated and quantified in the Mitigation Monitoring report accordingly. Measures to Reduce Take of Swainson s Hawk. The MND includes inadequate measures to reduce take. There is evidence cited in the DFG letter that a nesting pair is within one half mile of the project and nesting right on the path of the generation tie line. Mitigation Measures 9 and 10 do not address the tie line path but refer only to the project site. Mitigation Measure 10 should include the following standard protocols: 4 In order to avoid take of nesting raptors (including Swainson's hawks), a pre-construction raptor nest survey shall be conducted within 15 days prior to the beginning of construction activities by a California Department of Fish and Game (CDFG) approved biologist in order to identify active nests in the project site vicinity (within one-half mile). The results of the survey shall be submitted to CDFG. If active nests are found, a quartermile (2640 feet) initial temporary nest disturbance buffer shall be established. If project related activities within the temporary nest disturbance buffer are determined to be necessary during the nesting season, then an on-site biologist/monitor experienced with raptor behavior shall be retained by the project proponent to monitor the nest, and shall along with the project proponent, consult with the CDFG to determine the best course of action necessary to avoid nest abandonment or take of individuals. Work may be allowed to proceed within the temporary nest disturbance buffer if raptors are not exhibiting agitated behavior such as defensive flights at intruders, getting up from a brooding position, or flying off the nest. The designated on-site biologist/monitor shall be on-site daily if necessary while construction related activities are taking place and shall have the authority to stop work if raptors are exhibiting agitated behavior. In consultation with the CDFG and depending on the behavior of the raptors, over time it may be determined that the on-site biologist/monitor may no longer be necessary due to the raptors acclimation to construction related activities. We are aware that DFG followed up with a review of the MND (March 23, 2012) and more specific information on the potential impacts and additional mitigation language. The MND has not been amended to conform with DFG recommendations. We support and share their concerns about burrowing owl protections and protections for nesting migratory raptors. Mitigation Measure 15 is apparently intended to provide compliance with required protections for migratory birds and raptors. The IS fails to adequately identify the impacts of the project to migratory birds and raptors. DFG did provide specific language for mitigation however. The MND fails to comply with DFG guidance on what these protections should be and therefore fails to provide substantial evidence that the impacts will be to less than significant.

5 We strongly recommend that you not certify this MND, but prepare the necessary additional analyses and mitigation measures to comply with trustee agency guidance on species protection. Otherwise Fresno County will not be in compliance with CEQA. Enforceable feasible mitigation measures for impacts on Swainson s Hawk foraging habitat and measures to avoid take are missing from this MND. CEQA requires Fresno County to mitigate the impacts of the project to less than significant, or if that is not possible, to the maximum extent feasible and to provide substantial evidence supporting its conclusions. Substantial evidence is lacking in this MND about the impact on Swainson s Hawk, and other raptors, and how the mitigation measures will reduce the impacts to less than significant. Please keep us informed about any public hearings or additional opportunities for public review for this project, and for projects like it that have impacts on Swainson s Hawks. Thank you for this opportunity to comment. Sincerely, Judith Lamare, Ph.D., President Friends of the Swainson s Hawk Cell: C: Garry George, Audubon California Jeffrey Single, Regional Manager, CDFG Central Region Kim Delfino, Defenders of Wildlife 5